20051128Report to Commission.pdf

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Molly O'Leary
Richardson & O'Leary, P.LLC.
O. Box 7218
Boise, ID 83707
Tel: [phone]
Fax: [phone]
Mo 11 y(fYrichardsonando leary. com
Idaho State Bar No. 4996
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Attorneys for Eagle Water Company, Inc.
BEFORE THE IDAHO PUBLIC UTILITIES COMMISSION
IN THE MATTER OF EAGLE WATER
COMPANY'S REQUEST FOR A TEMPORARYSURCHARGE CASE NO. EAG-W-OS-
EAGLE WATER CO MP ANY
INc.'S REPORT TO
COMMISSION
COMES NOW, Eagle Water Company, Inc. ("Eagle Water ) and files this
REPORT to the Idaho Public Utilities Commission ("the Commission ) in response to
the Commission s Order No. 29903, dated October 27 2005.
RESPONSES
1. The reasonableness of using a temporary easement for
a 12-inch mainline:
Eagle Water believes it was reasonable to use a temporary easement for its 12-nch
mainline into the booster pump that serves the Eagle Springs subdivision because:
(a) the easement allowed Eagle Water to construct the east-west mainline along
the most cost-effective route for its system;
EAGLE WATER REPORT TO
COMMISSION - 1
(b) the easement was only temporary until the gravel in that portion of Prime
Earth, Inc.s gravel pit could be mined, at which time a permanent easement was to be
executed; and
(c) the easement contained a 60-day notice provision to allow Eagle Water plenty
of time to relocate its 12-inch mainline in the event the gravel in that portion ofthe gravel
pit needed to be mined. See Exhibit A, Temporary Water Line Easement, attached.
(This document was provided to Commission Staff on October 4, 2005, in response to
Staffs First Production Request.)
2. Whether the easement agreement provided for adequate notification
regarding gravel operations which might affect the mainline:
See response 1 ( c), above. Eagle Water believes the 60-day notice provision was
adequate. Unfortunately, Prime Earth received several large orders for gravel which it
had to deliver quickly and needed to excavate this portion of its gravel pit sooner than
expected. Consequently, Eagle Water was given four days notice instead of the required
60-days notice.
The basis for the 511 in legal costs:
The $2 511.00 estimate oflegal costs that was contained in Eagle Water s calculation of
its out-of-pocket costs associated with replacement ofthe 8-inch mainline to the booster
pump with the 12-inch line was based on 14.5 hours oflegal services provided to Eagle
Water by Richardson & O'Leary, PLLC through August 18 2005. These legal services
were provided to Eagle Water regarding pressure problems in the Eagle Spring
subdivision area, which were addressed by Eagle Water by reconnecting the 12-inch
mainline from west of the Farmer s Union Canal to the booster pump, in place of the
temporary 8-inch mainline that was connected to the booster pump in the summer of
2004, when the 12-inch mainline was undermined. See Exhibit Richardson &
Leary, PLLC Statement for legal services rendered through August 18, 2005, attached;
see also Exhibit C, Eagle Water diagram showing temporary 8-inch mainline
connection from existing mainline on Old Horseshoe Bend Road, attached.
4. Whether it has adequately explored seeking recovery of damages to the
mainline from other parties:
Eagle Water is in the process of completing negotiations with Prime Earth, Inc. for a
permanent easement for its 12-inch mainline that runs east-west from the new Highway
55 to the booster pump that serves the Eagle Springs subdivision. Eagle Water does not
believe it is prudent to consider legal action against Prime Earth until such negotiations
are completed.
EAGLE WATER REPORT TO
COMMISSION - 2
In closing, Eagle Water wishes to apologize to the Commission for not getting this
information to the Commission by November 17, 2005, as ordered by the Commission.
RESPECTFULLY SUBMITTED, this 28th day of November, 2005.
Richardson & O'Leary P.LLC.
EAGLE WATER REPORT TO
COMMISSION - 3
EXHIBIT A
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FRON : EAGL.E I,JATEI~ CC-
PrlOHE t-ID. : :1.208'33982421-F~.b, 11 2080 03: SOP,1 P0,2
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ROBERT L. ALDRIDGE, CHARTERED
Attorney at Law
1209 North Eighth Street
Boise. Idaho 83702.4297
Telephone: [phone]Fax: [phone]Stale Bar No. 1296
TEMPORARY WATER L(NE EASEMENT
This AQreem~nt is made and e 0 this oat eon Prime Earth, Inc.
, Box 4065.Bol$g. Idaho 83711 ("Gran ~t) an Robert V- DeShazo
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Box 71. Eagle. Idaho 83618Grantee
WHEREAS. GrC3n~or is the reCord owner- 01 certain raal properly In the Counly of Ada. S\a19 ofIdaho, hereinafter the "Servient Estate ; and,
WHEREAS. Grantor has lhe unrostrict0d
rIght ~o gt'~nt the 9asement herejnaHQr de~crlbad. asappurtenant to, and running with, the Servient Estate;
NOW, THEREFORE, for good and valuable cons,derauon
. the aufflc/Bncy of whIch Is harobyaCknoWledged. the pariies hereto
spree a~ (ollows;; !
~eQtlon.L.
.G.mnl of EBSall1)~G1. Grantor does h""rebY grant \0 Grantee a temporary, non-exclusive easement to. over end Upon that portion of the Selvient Esta(e which
It; covered by endwithin the boundaries of th& following easement properly;
A portion of the Northeast y.. of the SOU1h/i!ast Yo, of Section 10 . Township 4 North, Rt:lng91 Ea~t of lhe BolGe Meridian, in Ada County, Idaho. mora partIcularly described to wit:
Commencing at a found 'Va Iron pipe with the relTJ~lns of an aluminum cap monumentmarking tl1~ .southeat;l corner of Section 10, Township 4 North , Rangs 1 East of the. Bois€!Meridian; thence NOl1h 00800'00" Eas.l1608, 75 feel along the
BEJel/on line betwt;ien Sect/one10 and 11 toa point; thence South 88"10'00" We$t40.11 feat (formsrjystated 8940.00 feet)to a point that Is referenced by a sat X" iron
pin with a plEstlc oep which bear9 North00901'56" We5t 1.00 feel from the boLtndary cornar:-lhenca contInuing South 88"10'00"West 295.00 fee! to a set W"ron pin wIth a pl~~Uc cap; thence contInuing South 889
10'00"Was1140,49 feat !o a $et y;." Iron pin with a pl~sflc cap on the
Northeasterly right of way the Far-mars Uolol'1 Canal; thanea f.llong the said Nor1hea.$terly.rlghl of way North 29"13'21"West 262.41 foal (rormerly stated a~ North 3$000' We$t 290.8 feet) 10 a found Y2" Iron pinWlthaples(iocap,ll-fE REAL POINT OF BEGINNING OFTHtS WATERLINE EASEMENt;thence along the said Northeasterly right of
W?y ,south 29'"13'21" East ,29.17 faal (formerlys1ated as South 35Qoo' East) to a point: thenc~ Norlh 88~13'1 an Wast 699,46 fQat 10 e pointon the Easle(ly right of way of the naw Slate ,Highway 55; thence along the said Easterlyright of way of the new Slale HighwBY 55 Nortl1
O2O37'31 " West 25.07 feet to a point; th(JncEISouth 88"13'18" ECI$t 686.36 feel to the REAL POINT OF BEGINNING OF THIS WATERliNE EASEMENT DESCRIPTION.
Eas.e.m~nt ProJ,)lnty
Page
WA TER UNE IEA$EMENT
FEB-11-2G00 14:58 1 -:JC":JO":;"
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~~OUQI1 2.$QoQe emd V.IU\U2.f Easemefll
A. Gramee,ll$ SUCC~!3~ors and assigns , Bnd Ita respBctly~ agentB, ind~pt!lndant contractors.
guests 6I1d invitees. shall use the easement for the con5lrucUon. installation, maintenance,
repair, and upgrading of an underground waler line.
. Grantee, Its 8uccassors or assJgna, may no! assign this Easement.
~J-~ Rlaht of Access. GrantS!!), it9 GUCC6SBOts and as91gns, shall hav$ the right
lo enter upon Hu;! Easement Property for ihe purposeo.~ sat forth in the Agreement. Grantee 'hall
also have lha right to remove ally trees, shrubs or brush necessary or convenient \0 flccon1plloh the
purposes of the Agreement. This insirumenl does not grant or corway to Grantee any right or 11lJe
lo the surface of the soil wIthin the Easement Property. except for the purpose of oxcavallng.
constructIng. Installing. maintaining, InspecUng, repairing, and upgrading lhe water line located
within tha Easamant Property.
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Gr~nl~~ ~o'I~~ p( ~olrv,Grantafil shell provide rast1onabla notice of enlry to
Grantor prior to entering upon the Eesemant Property except (or emergency.S9 easemenl granted by this Agreement may be tel'minBtad by
enter upon $Ixty (aD) days writ n notice to Grantaa. In such event. GrantQ9 shall, wllhin Breasona iii after such tarmln on, remove all water IIna end other installed artifacts from the
easement area an ra the easement area io its origll1al condilion.
Section 6.M9~.illI2o, No amendment to or modlflcalion of lhlt Agreem&nl shall' be valid
unless the same shall be if) writing. signed by the parties who are th..-m bound by the terms hereof.
~.D-l-, !;.gyjliU?l~ Relief. The parties acknowledge lhat the US0!: provided by this
Agreen-mnlare uniqlleand that rnOMY dBmBg.a~ alone for breach of this Agraement are: inadequate.
Any p2lr1y aygrlaved by a breach- of tha provision::; hereof may bring an action at law or B suit
aquHy to obtain relief, Including specific performance. Injune;ljva relief and any other avaIlable
equitable remedy. Time and strict performam;;e are of the B!UlBnce of this Agreement.
Section B. A'tQ!!.W.~S Fee6 - In the event suit or aclloh la InGltllut9d for a declaration or rights
har$undar or to enforce any of tha proviSions of this Agreement. the parll9& agrEl9 to pay the coal
of such surn$ as the lr~aJ court mad adjudge QS aHorney feas lo be awarded thE! pre;;valllng party.
If any appeal i$ taken from any judgment or decree, the parties egr&e to pa~1 fulthar aUorn9Y s faus
and costs as may b~ adjudged reasonable by any :.Jppollale court and awarded the prevailing party.
~.QlQ...rU1. alndlng Effect ~nd A~sllJtJm~nt.Both the burdenB end b~meflls of this AgreE'Jrmml
shall De appurtenant to and run with the land comprising the Servlaot Estate. Bnd shall b~ binding
upon and Inure Lo the bemerlt of the parties herato, their resp~dive- 8ucce9sors, heirs, ancllagal
reprasen(ativo~.
Page 2 WATER LINE EASEMEI.,JT
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FEB-11-2000 ~: 58 1208'33'30242+95/;
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9~Qtjon 10, !:rlpf- EaBe.1D..\Wl.aJJd-EoclJrnbrn.DJ;.ft~" This Eesem8nt Is granlad subject to all prior
9asementG Dr encumbrances of racord. if any.
SB~t.iQn_.11. Prolat:tion or Rlchts or Socured :P€lr1I~. No breach of tho provisions In thIsAgre0rnenl shall defeat or render Invalid the lien of any conlrad of ~al€l. mortgage(s) or dead(g)
trust now or hGreaftar ~xfJcllted upon land subject to thi& Agreement; provided, however, thellf any
portion of saId property Is Gold under a foreclosure of any mortgage(s) 01' under the provision!) of
any desd(s) of trust. any PUrchBserat such safe. and oils successors and assign!';, shall hold any and
aU property so purchased subject to all of the provision6 of this Agreement.
S69JiQn 1~. lrlClemnll:i. The parties harato and any SUb$ElqUBht owner& shall defend. Indemnify
end hold thf) other owner(s) harmless from any claim. 1095, or lIablfily arIsing out of the connection
with the ownar's failure to comply with the termg and provlslon6 of this Agraarnent.
fuIctiOQ 13.AU e)(penses related to the uaa of the t)QgemBnt, and any 9xpan999 of
installing, malntnlning. hooking up, ele" the water line located In the Ea6emAnl Properly. or My
nature whatever (and including, but nollimltad to, survey costs, costs related to any goYBml119nlal
agency of ShY nature. coatB of any applications, c:ostG related lo thfJ hookup of such line, Including
any impact fef)$ or similaf fees. legal coals Incum~d. including legal cosl~ Ir1Curred by Grantee, Bnd
80 fortll). 8hall b& paid by GrMte9-
DATED: February 11.2000.
PrImo Earlh, Inc.
STATE OF IDAHO
~~=(/f?By. Cor(J. Se.-c.(-e-"~"-
COUNTY OF ADA
55,
On thlt;; Febwary .2000. before me, a Notary ~1ubllo In end for lhe State of Idaho. personally
appear~d oS o....t'tc ,J L . il...-#'::'I(!.J-I)'7\
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known to me -or identiOed to me or proved to me on lhe basla
of satisfactory avldanCEI to be (he (.:/J~
p'
/ 5 G.L of Prime Earth. 10(:.. and to be the pereDn
whosa name Is allachod to thE! foregoing instrument and acknowledged 10 me that said corporatioli
eJxoculed the Bame.
IN WITNESS WHEREOF, I have hereunto placed illY official hand and 9MI th9 day and Yt)ar In thIs
Certificate first above written.
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WATER LINE EASEMEf\JTJ" ...... .;.V ~.r l' .01 1:1 0 ~ ..
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FEB-11-2000 14: 58 1208';1290242+95%
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PHmE NO. : 12089390242+
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Feb. 1 J. :'!ldldl:1 I:J,J ; ~:'!~r't-'u:;;,FRO~1 ; EAGLE URTER CO.
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ACCEPTED:
STATE OF IDAHO
88.
COUNTY OF ADA
On Chis Fabruary 11 . 2000, before me, Robert L. Aldridge , a Nolary Public in and ror said Stele
per$onatly Bpp&ared Robal1 V- DeShazo, p8r~onally known (0 me , or Idantified to me. or proved to
m$ On the basis of salis'factory evidence), to be the person whose name, is Eltt~ched to 1he within
il1slrUrri€!nt and acknowlftdged to me (helt $2!ld person execuled the same.
IN WITNESS WHEREOF, I hav() hereunto pieced my official hand and seal th9 day and year In this
CertIficate first ebovB written.
Notary Public for Idaho
Residing at Meridian
My CommissIon explms 011 7-2000
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Page 4
WATER UNE: EASEMENT
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FEB-1l-2000 14:58 12138'3:::,913.'242+95/.
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EXHIBIT B
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RICHARDSON & O'LEARY, PLLC
515 N. 27th Street
O. Box 7218
Boise, ID 83707
To:
Eagle Water Company
Robert, V. DeShazo, Jr., Pres.
PO Box 455
172-D W.State Street
Eagle, ID 83616
Date Transaction
12/31/2004 Balance forward
08/16/2005
08/16/2005
09/13/2005
16RO - DEQ/W ater Pressure-
INV #2163. Due 08/16/2005.
PMT #1012. from trust fund
INV #2180. Due 09/13/2005.
Current 31-60 Days Past
Due30 Days Past Due
318.
61-90 Days Past
Due
atement
Date
9/15/2005
Amount Due Amount Enc.
318.33
Amount Balance
265.
265.
318.
265.
318.
Over 90 Days Past
Due Amount Due
318.33
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EXHIBIT C
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